United States District Court, E.D. Missouri, Eastern Division
STEPHEN R. CLARK UNITED STATES DISTRICT JUDGE
ensure timeliness in this case, the Court by docket text
order (Doc. 14) granted the motion for appointment of counsel
of the Capital Habeas Unit of the Office of the Federal
Public Defender for the Southern District of Ohio Capital
Habeas Unit (“Southern District CHU”) (Doc. 13)
in this capital habeas matter. This Memorandum explains the
Court's reasons for granting the motion.
is a state prisoner who has been sentenced to death following
his 2009 conviction for first degree murder in Carter County,
Missouri. A jury found that petitioner murdered Missouri
highway patrolman, Sergeant Carl DeWayne Graham, Jr., but
left it to the Circuit Court Judge to decide whether to
impose the death sentence. On, November 20, 2018, the Supreme
Court of Missouri affirmed petitioner's conviction and
death sentence. See Shockley v. State, No. SC96633
(Mo.). The motion for rehearing was denied in the Supreme
Court on September 3, 2019. Id. Petitioner was
represented by William J. Swift during his post-conviction
proceedings in the Supreme Court of Missouri.
as an indigent litigant, is entitled to seek appointment of
counsel pursuant to McFarland v. Scott, 512 U.S.
849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) and 18 U.S.C.
§ 3599(a)(2), in order to challenge the
constitutionality of his state convictions and sentence.
Section 3599 provides, in relevant part,
In any post-conviction proceeding under section 2254 or 2255
of title 28, United States Code, seeking to vacate or set
aside a death sentence, any defendant who is or becomes
financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary services
shall be entitled to the appointment of one or more attorneys
and the furnishing of such other services in accordance with
subsections (b) through (f) [(relating to conditions of
18 U.S.C. § 3599(a)(2).
McFarland, the United States Supreme Court construed
this statutory right to counsel to include the right to legal
counsel prior to the filing of a formal federal habeas corpus
petition and held that “a ‘post-conviction
proceeding' within the meaning of [§ 3599(a)(2)] is
commenced by the filing of a capital defendant's motion
requesting the appointment of counsel for his federal habeas
corpus proceeding.” McFarland, 512 U.S. at
856-57. Accordingly, once a capital defendant files a motion
requesting appointment of counsel, as petitioner has done in
this case, he is granted “a mandatory right to
qualified legal counsel.” Id. at 854. This
right to counsel “necessarily includes a right for that
counsel meaningfully to research and present a
defendant's habeas claims.” Id. at 858.
The Supreme Court cautioned that “[w]here this
opportunity is not afforded, ‘[a]pproving the execution
of a defendant before his [petition] is decided on the merits
would clearly be improper.'” Id. (quoting
Barefoot v. Estelle, 463 U.S. 880, 889, 103 S.Ct.
3383, 77 L.Ed.2d 1090 (1983)).
Court has previously concluded that petitioner is indigent
and entitled to learned capital counsel. Moreover, after
reviewing the qualifications of proposed counsel, the Court
finds that both the Southern District CHU and the Office of
the Federal Public Defender for the Western District of
Missouri's Capital Habeas Unit (“Western District
CHU”) have demonstrated the special expertise in
capital jurisprudence that qualifies both entities for
appointment as capital habeas counsel under the standards set
forth in 18 U.S.C. § 3599(a)(2). The Western District
CHU was appointed to represent petitioner in this matter on
September 19, 2019. At this time the Court will grant
petitioner's motion for appointment of the Southern
District CHU as co-counsel in this action.
Scheduling Order was entered in this Capital Habeas on
September 19, 2019. An extension of time to file the petition
in this matter was granted on November 1, 2019. The petition
is due to this Court no later than June 3, 2020.
For the above stated reasons, the Court appointed the Office
of the Federal Public Defender for the Southern District of
Ohio Capital Habeas Unit to represent petitioner in this
action, and as such, counsel's motion for appointment of
In the Memorandum in Support of the
Motion for Appointment of Counsel, the Southern District CHU
states that their request to represent petitioner out of
district has been approved by the Administrative Office of
the United States Courts, Chief Judge R. Guy Cole of the
United States Court of Appeals for the Sixth Circuit and